Opinion
No. CV 02 0076353 S
June 28, 2005
MEMORANDUM OF DECISION ON THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
STATEMENT OF THE CASE
This action, having a return date of January 15, 2002, was instituted by the plaintiff, Hedda Smulewicz-Zucker, against the defendant, Dr. David Zucker, seeking damages for intentional infliction of emotional distress based on actions allegedly committed by the defendant between October 1994 through November 20, 1998. The defendant has filed an answer denying liability and asserting special defenses based on the statute of limitations, collateral estoppel, and res judicata. Pending before the court is the defendant's motion for summary judgment. In this motion, the defendant argues that the plaintiff's action is barred by the statute of limitations, and to the extent that any claims are not so barred, judgment must enter in his favor as to the remaining claims because they either fail to state a legally sufficient claim or are barred by collateral estoppel.
Based on the pleadings, it is undisputed that the plaintiff and the defendant were married on August 12, 1973, and that they have a son, Gregory, who was born on December 8, 1983, and a daughter, Alexa, who was born on June 28, 1985. At that time, and continuing to the present, the defendant was a psychiatrist. On October 2, 1994, the plaintiff filed for dissolution of marriage. On October 5, 1998, the court for the regional family trial docket at Middletown entered a judgment dissolving the parties' marriage. The judgment granted the parties shared custody of their children and issued financial orders regarding the parties' assets and the support and maintenance of the plaintiff and the children. The defendant appealed the judgment of dissolution. Thereafter, the plaintiff filed a motion to modify the custody order. This motion was scheduled for a hearing on November 20, 1998.
On November 20, 1998, the parties appeared for the hearing on the motion to modify, but after negotiations through counsel, they reached an omnibus settlement resolving the plaintiff's motion and the defendant's appeal. As part of the settlement, involving a financial stipulation and a custody agreement, the plaintiff gained sole custody of the children and the defendant received visitation rights as initiated by the children. There was a stipulation for no payments for child support. The plaintiff relinquished her one-half interest in the defendant's one-third interest in his real estate partnerships. The plaintiff would receive $1,000,050 in lump-sum alimony to be disbursed bi-monthly over a ten-year period, and the defendant would provide a $1,000,000 life insurance policy naming the plaintiff as its beneficiary. The parties' agreements were reviewed and approved by the court, Gordon, J., and the court found them to be fair and equitable. The court opened the dissolution judgment and entered new orders adopting and incorporating the terms of the agreement. The court's November 20, 1998 order modifying the dissolution judgment was not appealed by either party.
The plaintiff alleges that from the time she filed for divorce in October 1994 through November 20, 1998, the defendant engaged in a series of actions to intentionally harass, manipulate and threaten the minor children for the purpose of inflicting emotional distress upon her. Particularly as to the events on November 20, 1998, the plaintiff alleges that the defendant engaged in two activities that support her cause of action. First the plaintiff alleges that the defendant proposed through his counsel that a full settlement could be reached by the defendant making concessions regarding custody and visitation in exchange for the plaintiff making financial concessions on the alimony, support and asset divisions. As characterized by the plaintiff, she was pressured into an inappropriate "bartering" of her children.
Paragraph 20 of the revised complaint asserts this claim as follows: "On or about November 20, 1998, the defendant abandoned and relinquished custody of the minor children to the plaintiff in exchange for plaintiff's giving up major financial assets and benefits including lifetime support and substantial assets. While relinquishing custody of the minor children to the plaintiff was in the best interest of the children, said actions of the defendant caused plaintiff emotional distress because it confirmed that the children had been abused and misused by the defendant from October 1994 through November 20, 1998 to distress the plaintiff and deny her assets and benefits to which she had legitimate rights."
The plaintiff also claims that on November 20, 1998, the defendant intentionally inflicted emotional distress upon her by threatening to "institutionalize" their son unless the plaintiff agreed to take a less favorable portion of the financial assets. Specifically, the plaintiff alleges that the defendant's attorney handed a motion to her attorney, who in turn shared it with her. The motion indicated that the defendant was seeking a court order that the parties' son be sent to a boarding school to treat his depression. The plaintiff objected to such a school and she allegedly suffered a severe panic attack after reviewing the motion and walked out of the courtroom. The plaintiff's brother, Daniel Smulewicz, was also present on the date in question. According to Daniel Smulewicz' deposition testimony, he followed her and attempted to calm her. The plaintiff's attorney retrieved the plaintiff just prior to the commencement of the proceedings.
According to the deposition testimony of plaintiff and Robert Smulewicz, prior to the November 20, 1998 hearing, the defendant had filed charges against the son because of an altercation between them; the son was taking medications for anxiety and depression; and the son had expressed suicidal ideation. Plaintiff's October 5, 2004 Deposition, p. 197; Plaintiff's October 8, 2004 Deposition, pp. 234, 247; Daniel Smulewicz' Deposition, pp. 8, 57.
To support their positions regarding the motion for summary judgment, both parties rely on the plaintiff's deposition testimony. The plaintiff has also submitted the deposition of her brother, Daniel Smulewicz. The defendant has submitted his own affidavit and a transcript of the November 20, 1998 proceedings. Based on the parties' submissions, there is no dispute that on November 20, 1998, the plaintiff and the defendant did not have any direct contact with each other and did not speak to each other. All their communications took place through their attorneys.
There is also no dispute that on November 20, 1998, the plaintiff was canvassed by the court and was given the opportunity to state whether she was satisfied with the terms of the parties' agreement or whether she felt pressured in any way. On November 20, 1998, the court canvassed the parties on the custody agreement in the morning and on the financial stipulation in the afternoon. The following is part of the court's morning canvass (Transcript of November 20, 1998 hearing, pp. 8-9 ("Transcript")):
THE COURT: Miss Smulewicz, could you stand up?
THE PLAINTIFF: Yes.
THE COURT: Can you tell me why you're crying?
THE PLAINTIFF: Because I'm, very, very happy.
THE COURT: Okay. I just wanted to make sure that it wasn't because you were disagreeing with the agreement that I just heard.
THE PLAINTIFF: No. I'm very happy.
THE COURT: Have you had enough time to talk with your lawyer about that agreement?
THE PLAINTIFF: Yes.
TILE COURT: And is that in fact your agreement?
THE PLAINTIFF: Yes.
THE COURT: Has anybody forced you, threatened you, intimidated you, harassed you in any way to get you to enter into the agreement?
THE PLAINTIFF: No.
THE COURT: Do you understand that by entering into the agreement, you are waiving your right to have a hearing on the custody matter?
THE PLAINTIFF: I do understand, Your Honor.
THE COURT: Do you have any questions at all?
THE PLAINTIFF: No, not right now.
THE COURT: The agreement is your voluntary act of your own freewill?
THE PLAINTIFF: Yes, it is. Thank you.
The following is part of the court's afternoon canvass (Transcript, pp. 22-23.):
THE COURT: Miss Smulewicz, could you stand up please? Miss Smulewicz, have you read the agreement?
THE PLAINTIFF: I have.
THE COURT: Have you had enough time to talk with your lawyer about it?
THE PLAINTIFF: I have.
THE COURT: And do you understand all of its terms?
THE PLAINTIFF: I do.
THE COURT: Has anybody forced you or threatened you to enter into the agreement?
THE PLAINTIFF: No.
THE COURT: You do so voluntarily?
THE PLAINTIFF: I do.
THE COURT: Do you believe that it is fair and equitable?
THE PLAINTIFF: I do.
THE COURT: You understand that there is an appeal pending, that the appeal may be rejected and that is that you may have in fact been — the orders may have stood as I entered them; you wish this to supplant those orders knowing that those orders will be forever gone?
THE PLAINTIFF: That's correct.
THE COURT: Do you have any questions at all?
THE PLAINTIFF: No.
THE COURT: There's no provision for alimony, periodic alimony, in this agreement. What that means is that once you leave this courtroom and I approve this, there's no other money that can be awarded to you. That is, there is no periodic alimony, there's nothing for you to come back and open in terms of support for yourself.
THE PLAINTIFF: I understand that.
THE COURT: Okay. You have no questions about that?
THE PLAINTIFF: No, I don't.
Thus, as part of the court's canvass, the court asked the plaintiff if she understood the agreement, if she had reviewed the agreement with her attorney, and if she voluntarily accepted the terms of the agreement free of duress. The plaintiff replied in the affirmative to these questions. The plaintiff did not inform the court that she felt coerced or threatened into accepting the parties' agreement. See Transcript of November 20, 1998 hearing ("Transcript"), pp. 8-9, 21-25. Indeed, the plaintiff informed the court that she was "very, very happy" with the custody agreement and that she believed the stipulation to be fair and equitable. Transcript, pp. 8, 22-23.
In her deposition, however, the plaintiff testifies that she was in fact coerced and pressured into accepting the agreements in order to regain sole custody of the children and that she lied to the court during the canvass. Plaintiff's October 5, 2004 Deposition, pp. 196-99. The plaintiff explains that she experienced pressure from the defendant, as well as from the court, because she had no confidence that the court would resolve her motion for custody or the defendant's motion to send the son to a boarding school appropriately in her favor.
At her deposition, in response to the question whether she had the opportunity to tell the judge that she disagreed with the settlement agreement, the plaintiff stated the following: "No, I didn't. Judge Gordon had made so many mistakes for the several months before that, I couldn't risk one more mistake. I couldn't risk trusting her with a decision." Plaintiff's October 5, 2004 Deposition, p. 195.
During her deposition, the plaintiff was also asked whether she truthfully informed the family court that she had voluntarily accepted the settlement agreement. Her response was that she was "coerced" into saying that she voluntarily accepted the agreement because this acknowledgment was a "condition" required by the court proceedings. According to the plaintiff; she was coerced "[b]y the situation and by the judge." Plaintiff's October 8, 2004 Deposition pp. 250-51.
In her deposition, the plaintiff makes numerous aspersions directed to the family court judge suggesting that the court created or was aware of the plaintiff's duress. "Absent strong evidence to the contrary, the law presumes that a judge properly performed her duties." Jenks v. Jenks, 34 Conn.App. 462, 469, 642 A.2d 31 (1994). Nothing in the November 20, 1998 transcript of the divorce proceeding or anything else submitted by the plaintiff meets any requisite showing that the family court judge acted improperly.
DISCUSSION I
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). Practice Book § 17-49 "provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004).
Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). In this respect, a motion for summary judgment is similar to a motion for directed verdict after the close of evidence. "[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." Id.
II
As to the defendant's statute of limitations claim, "[t]he applicable statute of limitations period for a claim of intentional infliction of emotional distress is three years. General Statutes § 52-577." DeCorso v. Watchtower Bible Tract Society of New York Inc., 78 Conn.App. 865, 873, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003), cert. denied, 541 U.S. 985, 124 S.Ct. 2059, 158 L.Ed.2d 489 (2004).
General Statutes § 52-577 provides the following: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
"Section 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs. When conducting an analysis under § 52-577, the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed. The three-year limitation period of § 52-577 begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury." (Citations omitted; internal quotation marks omitted.) Collum v. Chapin, 40 Conn.App. 449, 451-52, 671 A.2d 1329 (1996).
There is no dispute that the summons and complaint in this action were dated November 20, 2001, and that service was made on the defendant on November 21, 2001. Thus, the court agrees with the defendant that any claims by the plaintiff that took place more than three years prior to the date of service, November 21, 2001, are barred by the statute of limitations. Based on the pleadings and the parties' submissions, the only claims arguably within the limitation period are those that are based on events that occurred on November 20, 1998. As to these claims within the limitation period, the defendant contends that there are no factual issues of material dispute, and as a matter of law, the plaintiff has failed to state a claim for intentional infliction of emotional distress.
The general rule under Connecticut law is that for statute of limitations purposes, an action commences upon the service of the summons and complaint. See Consolidated Motor Lines, Inc., v. MM Transportation, Co., 128 Conn. 107, 109, 20 A.2d 621 (1941). General Statutes § 52-593a(a) modifies this rule in that it provides that "a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served as provided by law, within fifteen days of the delivery." The marshal's return of service and affidavit in this action indicate that the marshal received the summons and complaint on November 20, 2001, and service was made on November 21, 2001.
III
The elements necessary to prove a cause of action for intentional infliction of emotional distress are well-established. "In order for the plaintiff to prevail for a case for . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). Occurrences that are "distressing and hurtful to the plaintiff [may fail to] constitute extreme and outrageous conduct . . ." Id., 211.
An evaluation of whether a plaintiff has asserted a cause of action for intentional infliction of emotional distress sufficient to withstand a motion for summary judgment must be premised on properly supported evidence of the events that occurred; see Practice Book § 17-45; and not on the plaintiff or her counsel's histrionic characterizations or hyperbolic conclusions. Assuming arguendo the truth of the plaintiff's allegations concerning the events of November 20, 1998, the defendants actions may have been disturbing and stressful, but they do not rise to the level of extreme and outrageous conduct proscribed by the law under the tort of intentional infliction of emotional distress. A party's insistence of a global settlement of all issues, even in the context of a dissolution action involving custody and financial issues, is not extreme or outrageous. Unfortunately, in dissolution actions, the resolution of custody issues often involves a determination of the financial issues because of the maintenance and child support considerations intertwined with the custody decision. Similarly, the plaintiff's belief that she was pressured and coerced into accepting the agreement because she could not trust that the court would appreciate the frivolous or bad faith nature of the defendant's positions, also does not satisfy the necessary criteria for intentional infliction of emotional distress.
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (Internal quotation marks omitted.) Heim v. California Federal Bank, 78 Conn.App. 351, 365, 828 A.2d 129, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003).
As a matter of law, none of the events occurring on November 20, 1998, as alleged by the plaintiff, may be characterized as "so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (Internal quotation marks omitted.) Id., 365. "In family relations cases, it is common that the parties come to the tribunal with a history of emotional turbulence. Stress and anxiety are frequent companions of predissolution negotiations." Jenks v. Jenks, 34 Conn.App. 462, 470, 642 A.2d 31 (1994).
This is not to say that the court countenances the defendant's alleged behavior, which for the purpose of this disposition, is assumed to have been committed; nor does the court's holding imply that acts of duress or coercion can never support a claim of intentional infliction of emotional distress. The court's holding is simply that based on the acts of coercion as alleged here, the plaintiff has failed to satisfy all the elements necessary for the single cause of action she has asserted.
The court's decision also does not address whether other remedies would have been available to the plaintiff if they had been timely pursued. The plaintiff could have appealed the November 20, 1998 orders or she could have filed a timely motion to open or to vacate the judgment. There also may have been remedies available to her within the statute of limitations period. However, according to her deposition testimony, she consciously chose to forego pursuit of any possible, legal avenues until her children either achieved or approached majority age.
In response to the deposition question asking why she waited for three years to institute suit against the defendant, the plaintiff says, "I waited until my children were both eighteen." Plaintiff's October 8, 2004 Deposition, p. 205.
IV
The plaintiff argues that summary judgment is unavailable because an issue of fact exists about whether she was coerced into accepting the settlement on November 20, 1998. As discussed above, assuming the truth of the facts of the duress or coercion as asserted by the plaintiff, the plaintiff has failed to state a cause of action for intentional infliction of emotional distress. Additionally, under the circumstances here, the plaintiff is also collaterally estopped from claiming in this case that she was coerced into accepting the settlement.
"The related doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter that it already has had a fair and full opportunity to litigate . . . Collateral estoppel, or issue preclusion, means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit . . . [T]hus [i]ssue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment . . . The doctrine of collateral estoppel express[es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest." (Citations omitted; internal quotation marks omitted.) In Re Application for Writ of Habeas Corpus by Dan Ross, 272 Conn. 653, 661, 866 A.2d 542 (2005).
"[T]he decision whether to apply the doctrine of collateral estoppel in any particular case should be made based upon a consideration of the doctrine's underlying policies . . . These underlying purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest." (Internal quotation marks omitted.) Id., 662.
Collateral estoppel only applies when the issue in question has been fully and fairly adjudicated in the first action. The issue must have been actually decided and the decision must have been necessary to the judgment. "An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. 1 Restatement (Second), [ supra, § 27, comment (d)]. An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. F. James G. Hazard, supra, (3d Ed. 1985) § 11.19. If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta . . . 1 Restatement (Second), [ supra, § 27, comment (h)]." (Citations omitted; emphasis in original; internal quotation marks omitted.) Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 600, 674 A.2d 1290 (1996); accord, Bouchard v. Sundberg, 80 Conn.App. 180, 187, 834 A.2d 744 (for collateral estoppel to apply, the issue must have been actually litigated and necessarily determined in the first action).
Even when a judgment is premised on the parties' consent, rather than on judicial findings made after a trial, collateral estoppel may still apply to issues actually addressed and necessarily resolved as part of the terms of the parties' agreement or as part of the court's acceptance of the agreement, especially when acceptance of the agreement requires the court to make particular findings or determinations. See Carter v. Carter, 138 B.R. 356, 360 (D. Conn. 1992) ("If parties to a consent decree indicated clearly the intention that the decree to be entered shall not only terminate the litigation of the claims but, also, determine finally certain issues, then their intention should be effectuated"). In short, the application of collateral estoppel requires a fact-specific inquiry, and in this particular case, the predicates necessary for the application of collateral estoppel are present.
In the section on issue preclusion, the Restatement provides: "In the case of a judgment entered by confession, consent, or default, none of the issues is actually litigated." 1 Restatement (Second), Judgments § 27 cmt.e (1982). Specifically in regard to default judgments, our Supreme Court has stated the following about these comments: "The Restatement's requirement that an issue be actually litigated embodies the important concern that the parties be cognizant of and interested in an issue before they are precluded from litigating it. Adherence to this requirement, however, should not demand that in all circumstances a default judgment should mechanically be deprived of any issue preclusive effect. Such a demand would make inflexible the doctrine of issue preclusion, which we have noted must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." (Internal quotation marks omitted.) Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 717, 627 A.2d 374 (1993).
In order to accept the parties' settlement agreement and incorporate it into the judgment, the family court was required to find the settlement "fair and equitable." General Statutes § 46b-66. This finding, in turn, required the court to determine whether the agreement was accepted by the parties knowingly and voluntarily, without duress or coercion. See generally, Baker v. Baker, 187 Conn. 315, 321, 445 A.2d 912 (1982) ("the presiding judge has the obligation to conduct a searching inquiry to make sure that the settlement agreement is substantively fair and has been knowingly negotiated"); Monroe v. Monroe, 177 Conn. 173, 184, 413 A.2d 819, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979) ("because of the emotionally-laden circumstances under which negotiations about marital dissolutions necessarily take place, reasonable inquiries should be made to ensure, as far as possible, that reasonable settlements have been knowingly agreed upon").
General Statutes § 46b-66(a) provides the following: "In any case under this chapter where the parties have submitted to the court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. If the court finds the agreement is not fair and equitable, it shall make such orders as to finances and custody as the circumstances require. If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-1d."
The family court judge asked the plaintiff specific questions about whether she was satisfied with the agreements, whether she had discussed the agreements with counsel, and whether she was acting voluntarily and free from duress or coercion. The court found that the parties accepted the agreements voluntarily, and on the basis of these findings, concluded that the agreements were fair and equitable. Quite obviously, if the court had been persuaded that either party was dissatisfied with the proposed settlement or was being coerced, the court would have rejected the proposal and required the parties to proceed with the litigation of the issues in dispute. In short, it is evident under the circumstances here, that the voluntariness of the plaintiff's acceptance of the agreement was an issue actually adjudicated and necessarily determined as part of the family court's acceptance and adoption of the parties' settlement agreement.
As previously indicated, preclusion doctrines are neither fixed nor inflexible, and they should not be applied in a manner to frustrate other social policies or equitable considerations. See generally, Delahunty v. Massachusetts Mutual Life Ins. Co., supra, 236 Conn. 592 ("the doctrines of preclusion, however, should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies"). Thus, there may be circumstances where a court of equity may be disinclined to apply estoppel principals to preclude the assertion of claims of duress or coercion. This case does not present such circumstances. In order to acquire the result she wanted, which was sole custody of the children, the plaintiff accepted the settlement under the duress she has described and lied about. She proceeded to wait until she acquired full benefit of the bargain, through the children reaching majority age, and only then sought to raise issues concerning the propriety of the judgment by instituting this action. Under these particular facts, the court is persuaded to follow the cases that estop a party from repudiating a court approved settlement based on a claim that the party was forced to lie about the voluntariness of the decision to accept the agreement.
In Broad v. Conway, 675 F.Sup. 768 (N.D.N.Y. 987), aff'd, 849 F.2d 1467 (2d Cir. 1988), cert. denied, 488 U.S. 927, 109 S.Ct. 313, 102 L.Ed.2d 331 (1989), the plaintiffs settled a defamation case and later sued the attorneys who represented them. In the defamation action, the plaintiffs expressly stated on the record that they were voluntarily settling that action. In the malpractice case, however, they alleged that they were forced by their attorneys into accepting the settlement. In granting the defendants' motion for summary judgment, the District Court estopped the plaintiffs from asserting this allegation of duress: ". . . because the plaintiffs expressly stated on the record, in open court, that they were not coerced or influenced to settle, plaintiffs are precluded here [in the subsequent malpractice action] from claiming that there is an issue of fact as to whether they voluntarily settled the underlying action." Id., 772.
Similarly, in McKay v. Owens, 130 Idaho 148, 154, 937 P.2d 1222 (1997), the plaintiff brought an action against her former attorney claiming that the attorney committed malpractice in his representation of her in an earlier medical malpractice case. The court granted the defendant's motion for summary judgment holding that the plaintiff was judicially estopped from claiming that she was forced to lie about her voluntary acceptance of a settlement of the earlier case due to her attorney's alleged malpractice. See also, Newell v. Hudson, 376 N.J.Super. 29, 868 A.2d 1149 (2005) (in a legal malpractice case, the court granted the defendant's summary judgment motion and estopped the plaintiff from claiming that she lied about her understanding and voluntary acceptance of the terms of her property settlement agreement executed in an earlier divorce case).
CONCLUSION
Therefore, for all the foregoing reasons, the defendant's motion for summary judgment is hereby granted.
So ordered this 28th day of June 2005.
STEVENS, J.